ST JOHNS — The Apache County Attorney’s Office has decided to withdraw from the plea deal in the Joshua Richardson murder case. On Jan. 2, lead prosecutor Garrett Whiting sent an email to Ernest Collins, Jr., the victim’s widower and victim representative.
“For your information, we have made the decision to provide notice to the Court and Defendant that we are withdrawing from the plea agreement entered in November.”
Richardson is charged with first degree murder and other felonies in the shooting death of TerryLynne Collins at her family’s Concho retreat in October 2017. Richardson was 14 years old at the time.
The parties reached an agreement on Oct. 16 — it was the result of settlement conferences presided over by visiting Navajo County Judge Robert Higgins and involved Richardson and his lawyer, a deputy Apache County prosecutor, the widowed Ernest Collins Jr., and family.
A few weeks later on Nov. 4, Richardson pleaded guilty to one count of manslaughter and two counts of aggravated assault but pro tem Judge C. Allan Perkins did not accept it.
The acceptance of a plea is a critical juncture in a criminal case. It is virtually impossible to withdraw from an agreement that has been accepted by the court. In Richardson’s case, Judge Perkins wanted to wait until he had a chance to read the pre-sentence report which hadn’t been prepared yet. That is a document compiled by the probation department that gives the sentencing judge a comprehensive background about the case in general and especially about person who is to be sentenced.
In the meantime, Collins and his attorney objected ot the plea. Collins claims that he was assured that Richardson would plead to second degree murder. He claims his family was blindsided with the manslaughter plea. To make matters worse, the prosecutor then said that the plea would have to even go lower, to negligent homocide, in order to fit into the range of prison time (five to 25 years) the parties had agreed to.
It appears that the prosecutor is not that interested in the type of homicide charge Richardson pleads to, as long as the range of prison time comports with the range of sentence agreed to — five to 25 years.
The specific charge is important to Collins and he could accept a plea to a lowered count of second degree murder. But Collins was dead set against it being lowered to manslaughter, and then lowered even further to negligent homicide even though the potential prison time range wouldn’t change. He rightly observed that as a victim, he had the right to be notified of the change and says he wasn’t.
Collins and other family members had written a guest column and letters to The Independent explaining their view of this case and do not believe that justice would have been served by proceeding with the changed agreement.
Now the parties will go back to the drawing board. The defense might argue that the state is not allowed to withdraw from an agreement; that basic legal principles of contract law apply to these things. There was an offer and acceptance, and any first year law student knows when that happens, an enforceable contract is made.
But the rules of court place great emphasis on whether the agreement was accepted already by the court, and Richardson’s wasn’t. It remains to be seen whether the case will finally go to a jury for resolution, or whether the parties can recover from the latest glitch in this long-running case and settle it. A new court date has yet to be posted.